Bangalore District Court
Sri C.R.Venkatesh vs Smt.Sunitha on 10 April, 2019
IN THE COURT OF THE XXXVIII ADDITIONAL CITY
CIVIL JUDGE AT BENGALURU CITY
Dated this the 10th Day of April 2019
Present
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Additional City Civil & Judge,Bangalore City.
ORIGINAL SUIT NO.4437/2012
Plaintiff:
SRI C.R.VENKATESH, S/o late
C.N.Ramachandra, aged about 56 years,
residing at No.38, 2nd Phase,
Kumaraswamy Layout, Bangalore-560 078
[by advocate Sri G.R.Chandrashekar ]
V/s
Defendants:
1. SMT.SUNITHA, W/o late Sri T.Upendra,
aged about 50 years
2. KUM.PRAKRUTHI, D/o late Sri
T.Upendra,aged about 22 years
3. PRAJWAL, S/o late Sri T.Upendra, aged
about 19 years,
All are r/o Kavery Education Society, No.22,
1st Cross, V.P.Road, Madivala, Bangalore-68
and also at No.92, Opp.to Lincon School,
Thimmaraya Temple Street, Nekarara
Colony, Anekal-562 106, Bangalore Urban
District.
[by advocate Sri K.S.Devaraj ]
2 O.S.No.4437/2012
Date of Institution of the suit : 23/06/2012
Nature of suit : Recovery of money
Date of commencement of
Evidence : 23/06/2015
Date on which the judgment
is pronounced : 10/04/2019
Years Month Days
Duration taken for disposal :
06 09 17
JUDGMENT
This suit is filed by the Plaintiff for recovery of money from the defendants.
2. It is the case of the Plaintiff that the defendants are the wife, daughter and son respectively of late Sri T.Upendra. Said late Sri T.Upendra had borrowed a sum of Rs.7,50,000/- from the plaintiff on 3.1.2010 for the purpose of his domestic affairs, by way of cash. Said late Sri T.Upendra issued a post dated cheque bearing No.316208 dt.3.7.2010 for Rs.7,50,000/- drawn on Canara Bank, Madiwala branch, Bengaluru-68.
The plaintiff further submits that late Sri T.Upendra did not repay the amount borrowed. Hence the plaintiff presented the cheque issued 3 O.S.No.4437/2012 by late Sri T.Upendra for encashment on 6.7.2010. But the said cheque was dishonoured with bank shara 'account dormant' on 7.7.2010.
The plaintiff further submits that thereafter he got issued a legal notice dt.12.7.2010 to late Sri T.Upendra by RPAD and UCP to both his residence and school address. The notice sent through RPAD was refused by late Sri T.Upendra and the notice sent through UCP was served. In spite of receiving said notice, late Sri T.Upendra did not reply nor paid the amount to the plaintiff. Therefore the plaintiff filed a complaint in P.C.R.No.33921/2010 before XVI ACMM Court at Bengaluru u/S 138 of Negotiable Instrument Act. The XVI ACMM Court has taken cognizance and registered a criminal case against late Sri T.Upendra in C.C.No.47232/2010. When the non-bailable warrant was about to be executed, said late Sri 4 O.S.No.4437/2012 T.Upendra died in the road accident on 1.9.2011 and therefore the above said criminal case has become infructuous.
The plaintiff further submits that the defendants who are wife and children of late Sri T.Upendra succeeded to the properties of late Sri T.Upendra inclusive of Kavery Education Society by way of inheritance. Therefore the plaintiff got issued a fresh notice to the defendants calling upon them to pay the amount borrowed by late Sri T.Upendra. But the defendants neither replied to the notice nor paid the amount. Hence the plaintiff is constrained to file this suit.
Cause of action for the suit arose on 3.1.2010, the dare on which late Sri T.Upendra borrowed the amount, on 7.7.2010 the date on which said cheque was dishonoured, on 12.7.2010, the date on which legal notice was issued to late Sri T.Upendra, on 16.8.2010, the date on which the PCR was filed against late Sri 5 O.S.No.4437/2012 T.Upendra, on 28.2.2012, the date on which fresh legal notice was issued to the defendants, within jurisdiction of this Court.Hence the plaintiff prayed to decree the suit as prayed for in prayer column of the plaint.
3. On the other hand, Defendants 1 to 3 together filed Written Statement, contending that the suit is devoid of merits and liable to be dismissed.
At para 2(a) of the Written Statement, the defendants submit that the plaintiff has suppressed the material facts and made false allegations with mala fide intention and ulterior motive. At para 2(b), the defendants submit that there is no Cause of action for the suit and alleged one is frivolous and vexatious. The plaintiff is total stranger to the defendants. Late Sri T.Upendra has not transacted with the plaintiff at any point of time.
It is further submitted by the defendants at para 4 of the Written Statement that late Sri T.Upendra, the husband of defendant No.1 and 6 O.S.No.4437/2012 father of defendants 2 and 3, was the Founding Member of Kavery Education Society(earlier known as Wilson Garden Kavery Education Society), situated at 1st Cross, V.R.Road, Madivala, Bengaluru-68. Late Sri T.Upendra was running and administering a school on a leased premises at site Nos.1 and 2, renumbered as 58, Door No.12/58-3, present corporation No.11-3/22 and on vacant site bearing New Corporation No.22, Sy.No.11-3, PID No.66-7-022, both situated at V.P.Road, Madivala, Bangalore and adjacent to each other.
It is further submitted by the defendants that late Sri T.Upendra who was the then Secretary of Kavery Education Society and who was in-charge of the daily affairs of the Society, thought to run the school on freehold land than on leasehold land and hence purchased land bearing site Nos.1 and 2, renumbered as 58, Door No.12/58-3, present corporation No.11- 7 O.S.No.4437/2012 3/22 measuring 60 x 40 feet along with two squares A C Sheet roof house from its erstwhile owners namely Smt. Krishnaveni and others under registered sale deed dt.30.6.2004.
The defendants further submit that the vacant site bearing New Corporation No.22, Sy.No.11-3 measuring 60 x 30 feet which was adjacent to the aforesaid site Nos.1 and 2 belonged to one Sri T.V.Padmanabhan @ Kumar and his wife Smt.P.Ananthi. Late Sri T.Upendra approached owners of said vacant site to purchase the same to be used as playground for the school children. Said Sri T.V.Padmanabhan @ Kumar asked the members of Kavery Education Society to approach his lawyer one Sri N.N.Raj Urs and Sri T.V.Padmanabhan @ Kumar further said that all his property papers were with said advocate and if his advocate and Kavery Education Society agree on terms including the 8 O.S.No.4437/2012 consideration thereof, he would come and sign the Sale Deed at a designated time.
The defendants further submit that late Sri T.Upendra along with other members of Kavery Education Society, met Sri N.N.Raj Urs, the advocate, who said that Kavery Education Society will have to pay a total sum of Rs.48 lakhs to him, out of which the total consideration under the Sale Deed would be Rs.9 lakhs and another sum of Rs.39 lakhs would be paid to Sri N.N.Raj Urs. The market value of the said property at that time was Rs.9 lakhs. The Kavery Education Society which was in need of space to run their school, agreed to pay additional sum of Rs.39 lakh to Sri N.N.Raj Urs, the lawyer of Sri T.V.Padmanabhan @ Kumar who claimed that the amount was fee for taking care of affairs of properties belonging to Sri T.V.Padmanabhan @ Kumar and commission for sale transaction. The entire negotiations took place with the lawyer of Sri 9 O.S.No.4437/2012 T.V.Padmanabhan @ Kumar. Thereafter Kavery Education Society purchased the said vacant site from Sri T.V.Padmanabhan @ Kumar and his wife under registered sale deed dt.13.4.2005.
The defendants further submit that after execution of Sale Deed, late Sri T.Upendra learnt that there was a partition suit that was filed by sisters and mother of Sri T.V.Padmanabhan @ Kumar and on enquiring with Sri N.N.Raj Urs, said advocate assured late Sri T.Upendra that he would resolve the case as he had been taking money from late Sri T.Upendra and Kavery Education Society. Since Sri N.N.Raj Urs undertook to clear all litigation, late Sri T.Upendra had withheld the remaining amount of Rs.9,50,000/-and agreed to pay the same after the litigation is disposed. Said Sri N.N.Raj Urs insisted late Sri T.Upendra to handover five undated blank cheques duly signed, to him along with some blank signed 10 O.S.No.4437/2012 paper. Late Sri T.Upendra had transacted for the sale with said Sri N.N.Raj Urs believing his words that the cheques will be held by him as security and will not be misused, handedover five cheques including cheque bearing No.316208 in the year 2005. Late Sri T.Upendra paid Rs.38,50,000/- to Sri N.N.Raj Urs inclusive of sale consideration, in cash.
The defendants further submit that in the month of June, 2010, since the litigation was not cleared though five years has passed, late Sri T.Upendra met Sri N.N.Raj Urs on 19.6.2010 along with his friend Sri Nataraj and requested him to return the said cheques that were handedover to him and informed that he will pay Rs.5 lakhs of the remaining amount and another Rs.5 lakhs after the disputes have been resolved. But said Sri N.N.Raj Urs snubbed him and refused to return the said cheques. Late Sri T.Upendra had discussed this event with his wife, the defendant No.1 and 11 O.S.No.4437/2012 wrote a letter dt.30.6.2010 to Sri N.N.Raj Urs requesting him to resolve the litigation and to return the cheques and stating that he would pay the amount after the issue is resolved. But to their utter shock, Sri N.N.Raj Urs denied all the facts and alleged that undated cheque bearing No.316208 which was handedover by late Sri T.Upendra as a blank cheque somewhere in the year 2005 was presented for realization by the plaintiff on 3.7.2010 i.e., after the receipt of the letter by Sri N.N.Raj Urs.
It is further submitted by the defendants that when the things stood thus, late Sri T.Upendra died in a road accident on 1.9.2011. The defendants were served with the suit summons and were shocked to see the contents of the suit that the Notice had been issued to late Sri T.Upendra u/S 138 of NI Act and a PCR had been registered. Then the defendants 1 and 2 visited the office of Sri N.N.Raj Urs who then asked the defendants to pay a sum of Rs.49 12 O.S.No.4437/2012 lakhs and further threatened the defendants that if they did not pay the said sum, they will be forced to face litigation, not only in the above suit at Bengaluru, but also from various other towns such as Ramanagara, Anekal and Shidlaghatta.
It is further submitted by the defendants that the late Sri T.Upendra has never met the plaintiff and has not transacted with the plaintiff. This suit is filed only to harass the defendants, to extract money. The defendants denied the allegations made in para 1 to 6 of the plaint as false and untrue.
In para 21, the defendants took contention that the suit is not filed within time and the Court Fee paid is insufficient. Therefore requested the Court to dismiss the suit.
4. On the basis of the averments made in the plaint and the written statement filed by the 13 O.S.No.4437/2012 defendants, my predecessor has framed the Issues 1 to 4 on 19/09/2013, as follows :-
1) Whether the plaintiff proves that late Sri T.Upendra has borrowed a sum of Rs.7,50,000/- as a hand loan for a domestic purpose ad in that connection, he issued a cheque dt.3.7.2010 and that, the said cheque on presentation came to be dishonoured for want of funds as alleged in the plaint?
2) Whether the plaintiff proves that the defendants are jointly and severally liable to pay a sum of Rs.7,50,000/- with costs and interest as alleged in the plaint?
3) What relief the parties are entitled to?
4) What Order or decree?
5. In this case the plaintiff himself adduced his oral evidence by way of filing his sworn affidavit considered as PW1 and in further chief examination of PW1, the documents produced by him are marked as Ex.P1 to P17. In the cross-examination of PW1, the documents confronted by the side of defendants are marked as Ex.D1 to D10. No independent witnesses have been examined in support of plaintiff's case. On the other hand, the defendant No.1 herself adduced her oral evidence by filing her 14 O.S.No.4437/2012 sworn affidavit as DW1 and in further chief examination of DW1, Ex.D11 to D25 are marked. No independent witnesses have been examined by the side of defendants.
6. Heard oral arguments and perused the written arguments submitted by both side and then the case posted for judgment.
7. My findings on the above Issues are as follows:-
Issue No.1 : In the Negative Issue No.2 : In the Negative Issue No.3 : In the Negative Issue No.4 : As per Final Order, for the following reasons:
REASONS ISSUE NO.1:
8. This suit is filed by the plaintiff against the defendant for recovery of cheque amount of Rs.7,50,000/- along with interest.
9. It is the case of the Plaintiff that late Sri T.Upendra, who is husband of defendant No.1 and father of defendants 2 and 3, had borrowed a sum 15 O.S.No.4437/2012 of Rs.7,50,000/- from the plaintiff on 3.1.2010 for the purpose of his domestic problems, by way of cash, and against the security for having received hand-loan, said late Sri T.Upendra issued a post dated cheque bearing No.316208 dt.3.7.2010 for Rs.7,50,000/- drawn on Canara Bank, Madiwala branch, Bengaluru-68. It is further case of the plaintiff that late Sri T.Upendra did not repay the amount borrowed, hence the plaintiff presented the cheque issued by late Sri T.Upendra for encashment on 6.7.2010, but the said cheque was dishonoured with bank shara 'account dormant' on 7.7.2010. Then the plaintiff got issued a legal notice dt.12.7.2010 to late Sri T.Upendra by RPAD and UCP to both his residence and school address. The notice sent through RPAD was refused by late Sri T.Upendra and the notice sent through UCP was served. In spite of receiving said notice, late Sri T.Upendra did not reply nor paid the amount to the plaintiff. Therefore the plaintiff filed a complaint in P.C.R.No.33921/2010 before XVI ACMM Court at 16 O.S.No.4437/2012 Bengaluru u/S 138 of Negotiable Instrument Act and the said Court has taken cognizance and registered a criminal case against late Sri T.Upendra in C.C.No.47232/2010. When the non-bailable warrant was about to be executed, said late Sri T.Upendra died in the road accident on 1.9.2011. Therefore it is the case of the plaintiff that the defendants who are wife and children of late Sri T.Upendra succeeded to the properties of late Sri T.Upendra. The plaintiff got issued a fresh notice to the defendants calling upon them to pay the amount borrowed by late Sri T.Upendra. But the defendants neither replied to the notice nor paid the amount. Hence the plaintiff is constrained to file this suit for recovery of cheque amount of Rs.7,50,000/- from the defendants.
10. In order to prove that he has paid Rs.7,50,000/- to late Sri T.Upendra on 3.1.2010, the plaintiff the plaintiff himself adduced his oral evidence by way of filing his sworn affidavit considered as PW1 and in further chief examination 17 O.S.No.4437/2012 of PW1, the documents produced by him are marked as Ex.P1 to P17. In the cross-examination of PW1, the documents confronted by the side of defendants are marked as Ex.D1 to D10. Here the facts narrated in the chief examination of PW1 are nothing but repetition of the pleadings of the plaint. Therefore again it need not requires further explanation. However it is just and proper to know how for plaintiff succeeded in proving that he has paid Rs.7,50,000/- on 3.1.2010, to late Sri T.Upendra for his domestic problems. In the cross-examination of PW1 dt.2.1.2018 it reveals that late Sri T.Upendra who is husband of defendant No.1 and father of defendants 2 and 3 came to know to him through one Mr.Raju.Because in the cross-examination of PW1,he deposed that he is carrying construction business since 15 years so also said Mr.Raju is also carrying construction business. In the cross- examination of PW1, he deposed that he became a close friend of late Sri T.Upendra in the year 2009. The cheque as per Ex.P1 was issued on 3.7.2010. 18 O.S.No.4437/2012 Here in one breath, PW1 deposed that late Sri T.Upendra came to know to him in the year 2008 and in another breath, he deposed that said late Sri T.Upendra became a close friend of him in the year 2009. These contradictions with regard to familiarity of late Sri T.Upendra with PW1 is doubtful. Because how can PW1 suddenly got ready to pay the huge amount of Rs.7,50,000/- to late Sri T.Upendra in the year 2010 within a span of one year when late Sri T.Upendra came to know to him only in the year 2009. Because in the cross-examination of PW1, it goes to show that PW1 is not known the actual profession carried by late Sri T.Upendra. But PW1 simply deposed that late Sri T.Upendra is running an education society by name Kavery Education Society. But PW1 utterly failed to depose the status of late Sri T.Upendra in the said Kavery Education Society. So also PW1 failed to depose the exact residential address of late Sri T.Upendra and also financial condition of said Kavery Education Society. So this type of oral evidence in the cross- 19 O.S.No.4437/2012 examination of PW1 itself goes to show that there is any close friendship between late Sri T.Upendra and PW1. In order to prove that plaintiff is close friend of late Sri T.Upendra, he could have examined one Mr.Raju who is the person through whom plaintiff came to know late Sri T.Upendra. Therefore the oral evidence of PW1 at initial stage goes to show that late Sri T.Upendra is not well known to him.
11. In the cross-examination of PW1 dt.2.1.2018, he deposed that late Sri T.Upendra asked him for financial help for running Education Society, in the year 2009. Further PW1 admitted that in plaint or in the chief examination by way of sworn affidavit, it is mentioned that late Sri T.Upendra asked him money for his domestic problems. Such being the dual contention in the cross-examination of PW1, creates a doubt in the mind of the Court as to for which purpose actually the plaintiff has paid Rs.7,50,000/- to late Sri T.Upendra on 3.1.2010. So the plaintiff utterly failed to prove the urgent need of 20 O.S.No.4437/2012 money for late Sri T.Upendra for requesting the hand-loan.
12. In the cross-examination of PW1, at page 9, he deposed that he paid Rs.7,50,000/- in cash to late Sri T.Upendra on 3.1.2010 near Wilson Garden at Caffe shop in presence of his friend Mr.Raju. Again in the cross-examination of PW1 at page 11, PW1 deposed that he does not know the name of hotel where himself and late Sri T.Upendra were talked about handloan of Rs.7,50,000/- to late Sri T.Upendra. This goes to show that there was no any talks held between plaintiff and late Sri T.Upendra with regard to money transaction. As per contention of PW1, if at all the said loan transaction was held in the presence of one Mr.Raju, who is friend of PW1, then what prevented the plaintiff to get examined said Mr.Raju in order to prove that in presence of said Mr.Raju, late Sri T.Upendra received amount of Rs.7,50,000/- from the plaintiff. Further PW1 in his cross-examination at page 10, deposed that he has not verified whether actually late Sri T.Upendra was 21 O.S.No.4437/2012 suffering from personal financial problems or in need of money for solving problem of Education Society called Kavery Education Society. So here the plaintiff utterly failed to prove for what purpose late Sri T.Upendra received hand loan of Rs.7,50,000/- on 3.1.2010 from the plaintiff.
13. In the cross-examination of PW1, he deposed that he is not an income tax assessee, whereas PW1 at initial stage of his cross- examination deposed that he is doing construction business since 15 years prior to 2000. Under these circumstances PW1 established that he is not income tax assessee, by producing the relevant documents. This goes to show that the plaintiff utterly failed to prove on what source and by which means, he paid Rs.7,50,000/- to late Sri T.Upendra in cash at one stretch. So here from the cross- examination of PW1, goes to show that he is not having capacity to pay the said amount of Rs.7,50,000/- in cash at one stretch. 22 O.S.No.4437/2012
14. Here the contention of the defendants in the Written Statement is that late Sri T.Upendra, the husband of defendant No.1 and father of defendants 2 and 3, was the Founding Member of Kavery Education Society and was running and administering a school on a leased premises at site Nos.1 and 2, renumbered as 58, Door No.12/58-3, present corporation No.11-3/22 and on vacant site bearing New Corporation No.22, Sy.No.11-3, PID No.66-7-022, both situated at V.P.Road, Madivala, Bangalore and adjacent to each other. Late Sri T.Upendra who was the then Secretary of Kavery Education Society and who was in-charge of the daily affairs of the Society, purchased land bearing site Nos.1 and 2, renumbered as 58, Door No.12/58- 3, present corporation No.11-3/22 measuring 60 x 40 feet along with two squares A C Sheet roof house from one Smt. Krishnaveni and others under registered sale deed dt.30.6.2004, for the purpose of benefit of school. Further it is the contention of the defendants that the vacant site bearing New 23 O.S.No.4437/2012 Corporation No.22, Sy.No.11-3 measuring 60 x 30 feet which was adjacent to the aforesaid site Nos.1 and 2 belonged to one Sri T.V.Padmanabhan @ Kumar and his wife Smt.P.Ananthi. Late Sri T.Upendra approached owners of said vacant site to purchase the same to be used as playground for the school children. Said Sri T.V.Padmanabhan @ Kumar asked the members of Kavery Education Society to approach his lawyer one Sri N.N.Raj Urs and all his property papers were with said advocate and if his advocate and Kavery Education Society agree on terms including the consideration thereof, he would execute the Sale Deed. Therefore late Sri T.Upendra along with other members of Kavery Education Society, met Sri N.N.Raj Urs, the advocate. Said advocate demanded a total sum of Rs.48 lakhs to him, out of which the total consideration under the Sale Deed would be Rs.9 lakhs and another sum of Rs.39 lakhs would be paid to him. The market value of the said property at that time was Rs.9 lakhs. The Kavery Education 24 O.S.No.4437/2012 Society which was in need of space to run their school, agreed to pay additional sum of Rs.39 lakh to Sri N.N.Raj Urs, the lawyer of Sri T.V.Padmanabhan @ Kumar who claimed that the amount was fee for taking care of affairs of properties belonging to Sri T.V.Padmanabhan @ Kumar and commission for sale transaction. The entire negotiations took place with the lawyer of Sri T.V.Padmanabhan @ Kumar. Thereafter Kavery Education Society purchased the said vacant site from Sri T.V.Padmanabhan @ Kumar and his wife under registered sale deed dt.13.4.2005. But in the meanwhile, late Sri T.Upendra learnt that there was a partition suit in O.S.No.9707/2007 that was filed by sisters and mother of Sri T.V.Padmanabhan @ Kumar and on enquiry with Sri N.N.Raj Urs, said advocate assured to clear all litigation, hence late Sri T.Upendra had withheld the remaining amount of Rs.9,50,000/-and agreed to pay the same after the litigation is disposed. Said Sri N.N.Raj Urs insisted late Sri T.Upendra to handover five undated blank cheques 25 O.S.No.4437/2012 duly signed, to him along with some blank signed paper. Late Sri T.Upendra believing the words of Sri N.N.Raj Urs, handedover five cheques including cheque bearing No.316208 in the year 2005. Late Sri T.Upendra paid Rs.38,50,000/- to Sri N.N.Raj Urs inclusive of sale consideration, in cash. It is also contention of the defendants that since the litigation was not cleared though five years has passed, late Sri T.Upendra met Sri N.N.Raj Urs on 19.6.2010 along with his friend Sri Nataraj and requested him to return all the cheques given to Sri N.N.Raj Urs and wrote a letter dt.30.6.2010 to Sri N.N.Raj Urs requesting him to resolve the litigation and to return the cheques. But Sri N.N.Raj Urs refused to give blank cheque issued by late Sri T.Upendra. So here as per the contention of the defendants, there was no money transaction held between late Sri T.Upendra and plaintiff and said late Sri T.Upendra has not received Rs.7,50,000/- as hand-loan from plaintiff on 3.1.2010 and he has not at all issued cheque as per Ex.P1 to the plaintiff. Whether the 26 O.S.No.4437/2012 transaction was held between Sri N.N.Raj Urs and late Sri T.Upendra and said Sri N.N.Raj Urs is also well known to the plaintiff, is to be thrashed out in the cross-examination of PW1.
15. In the cross-examination of PW1 dt.30.5.2018, he admitted that O.S.40/93 was filed by one Smt. Jayamma and other against Srirangamma and Smt. Jayamma. He also admitted that O.S.40/93 is still pending before the court of Channapatna. He identified the certified copy of the plaint in O.S.40/93 and same is marked as Ex.D1. PW1 also admitted the vakalath in the year 1995 filed by his grand mother and his mother in O.S.40/93 before Channapatna Court which is marked as Ex.D2. PW1 also admitted the vakalath filed by his mother Jayamma in O.S.40/93 before Chennapattana court which is marked as Ex.D4. PW1 admitted that one G.R. Chandrashekar is also appeared on behalf of his mother in O.S.40/93 as per Ex.D4 and himself has got engaged same Chandrashekar, advocate in O.S.40/93. PW1 also 27 O.S.No.4437/2012 admitted that against the Judgment and Decree passed in O.S 40/93, the RA No.6/05 is filed before Civil Judge, Ramanagar and in said RA No.6/05 he appeared on behalf of appellant as a General Power of Attorney holder. PW1 identified the sworn affidavit filed by him in RA.No.6/05 which is marked as Ex.D6 and he admitted the address on Ex.D6 and further admitted that as on today he is residing in the address mentioned on Ex.D6. Further PW1 admitted that in RA No.6/5 he has filed vakalath on behalf of appellant as a General Power of Attorney holder and in the said vakalath, Sri N.N.Raj Urs and Chandrashekar are appeared and it is marked as Ex.D7. Another vakalath filed by Sri N.N.Raj Urs on behalf of appellant as a General Power of Attorney holder dated 10.8.2007 is marked as Ex.D8 and in RA No.6/05 he filed application u/O 22 Rules 2 and 3 R/W Sec. 151 of C.P.C. wherein he filed affidavit by mentioning the address as No.56/41, 13th cross, Padmabhanagar, Bangalore-70. The address shown on Ex.D8 belongs to Sri N.N.Raj Urs, Advocate 28 O.S.No.4437/2012 No.9/1, 12th Main road(Opposite to Corporation Ward Office), Padmanabhanagar, Bangalore-70
16. In the cross-examination of PW1 he totally denied the suggestions suggested by the counsel for the defendants that the house belongs to him and the house belongs to said Sri N.N.Raj Urs are situated at shortest distance in Padmanabhanagar, Bangalore. But here looking to Ex.D8 and D9 goes to show that the plaintiff and Sri N.N.Raj Urs who is advocate are residing in Padmanabhanagar, Bengaluru and the house of said Sri N.N.Raj Urs and house of plaintiff are situated at some distance in Padmanabhanagar,, Bengaluru. PW1 identified signatures of Chandrashekar on the certified copy of the notice dated 18.11.2014 which is marked as Ex.D10 and the letter head of Ex.D10 belongs to Sri N.N.Raj Urs.
17. Here the address of the advocate at para 1 of the plaint is mentioned as Sri G.R.Chandrashekar, Advocate. This goes to show that said Chandrashekar is junior to Sri N.N.Raj 29 O.S.No.4437/2012 Urs. But here in the cross-examination of PW1, at page Nos.18 and 19, again he denied the suggestions suggested by counsel for the plaintiff that said advocate Sri N.N.Raj Urs is well known to him. So this goes to show that as per the contention of the defendants, Ex.P1 is issued to the advocate Sri N.N.Raj Urs towards security in relation to sale transaction of the plot which has been purchased by late Sri T.Upendra. Even though in this case the plaintiff denied that said Sri N.N.Raj Urs is not known to him, the documents which are confronted in his cross-examination are admitted and marked as Ex.D1 to D10, itself sufficient that said advocate Sri N.N.Raj Urs has signed on several vakalats and also identified the signature of plaintiff before Notary. This goes to show that on the suggestion of said advocate Sri N.N.Raj Urs, the plaintiff has filed this suit and received the said cheque which is marked as Ex.P1 from the advocate Sri N.N.Raj Urs and filed this false suit. Therefore the admissions in the cross-examination of PW1 itself sufficient for 30 O.S.No.4437/2012 establishing the relationship between the plaintiff and plaintiff's counsel Chandrashekar and advocate Sri N.N.Raj Urs. So from the cross-examination of PW1 and the documents confronted by the side of defendants' counsel and admitted by PW1, goes to show that there is no any money transaction held in between PW1 with late Sri T.Upendra who is husband of defendant No.1 and father of defendants 2 and 3.
18. Here defendant No.1 is examined as DW1 and in further chief examination of DW1 the documents produced by him are marked as Ex.D11 to D25. As per Ex.D21, which is the certified copy of Sale Deed dt.30.6.2004 through which late Sri T.Upendra purchased the land from Sri T.V.Padmanabhan @ Kumar and his wife Smt.Ananti. Here with intention to purchase adjacent land situated by the side of Kavery Education Society for the purpose of play ground, said late Sri T.Upendra, the then Secretary of Kavery Education Society along with Standing Committee 31 O.S.No.4437/2012 members determined to purchase the said site and approached said Sri T.V.Padmanabhan @ Kumar who is the owner of the vacant land. Said Sri T.V.Padmanabhan @ Kumar informed the members of the Kavery Education Society to approach his advocate Sri N.N.Raj Urs who would negotiate with regard to sale consideration amount and as per the terms and conditions of said Sri N.N.Raj Urs, said Sri T.V.Padmanabhan @ Kumar was ready to execute the Sale Deed. But here in the chief examination of DW1, goes to show that as per the instruction of Sri N.N.Raj Urs who informed the members of Kavery Education Society that amount will be shown as Rs.9 lakhs and remaining amount of Rs.39 lakhs would be payable to advocate Sri N.N.Raj Urs. The said Sale Deed dt.13.4.2005 is marked as Ex.D20. Out of the amount of Rs.39 lakhs, late Sri T.Upendra paid Rs.29,50,000/-.
19. Here Looking to cheque bearing No.316208 produced by the plaintiff which is marked as Ex.P1, it was issued in the year 2005 32 O.S.No.4437/2012 and that was handedover by late Sri T.Upendra as blank and undated cheque to Sri N.N.Raj Urs in the year 2005. But the plaintiff has not produced the said document, because it is an old cheque, but by writing the date and month as 3.7.2010 created for the purpose of filing of this suit. But there is no signature of late Sri T.Upendra on the backside of Ex.P1. The plaintiff has not put signature while presenting Ex.P1. Therefore the cheque has not been handed over by late Sri T.Upendra to the plaintiff and the present suit is filed by the plaintiff by suppressing material facts making false allegations against the defendants. Therefore from the cross-examination of DW1 nothing is elicited from the mouth of DW1 in order to prove that late Sri T.Upendra has borrowed money of Rs.7,50,000/- from the plaintiff on 3.1.2010. Therefore the present suit is filed by the plaintiff only on false facts and imaginary grounds by suppressing the real facts. So from the admissions in the cross-examination of PW1 goes to show that 33 O.S.No.4437/2012 the plaintiff is well known to Sri N.N.Raj Urs and also Chandrashekar. Therefore in order to protect interest of Sri N.N.Raj Urs, this suit is filed at the instance of Sri N.N.Raj Urs, advocate. So here the plaintiff utterly failed to prove for what purpose late Sri T.Upendra has received hand-loan of Rs.7,50,000/- from him. The plaintiff also utterly failed to prove that he was capable of being paid so much of huge amount of Rs.7,50,000/- at one stretch on 3.1.2010 to late Sri T.Upendra. Further Ex.D11 and 12 clearly goes to show the transaction held in between late Sri T.Upendra and Sri N.N.Raj Urs. This fact is proved by the defendants by producing Ex.D1 to D10 which are confronted in the cross-examination of PW1. The defendants also proved that there was a litigation in relation to the plot purchased by late Sri T.Upendra as per Ex.P21 and P22. Therefore the documentary evidence and oral evidence and admissions in the cross- examination of PW1 clearly establish the fact that Ex.P1, which is the cheque, is issued by late Sri 34 O.S.No.4437/2012 T.Upendra to the advocate Sri N.N.Raj Urs, but not to the plaintiff. Therefore the plaintiff approached the Court by suppressing the material facts and filed this false suit in order to establish the false claim against the late Sri T.Upendra and also his family members defendants 1 to 3. Hence I answered Issue Nos.1 to 3 in the Negative.
ISSUE NO.4:
20. In view of the discussions and observations made in the above paras on Issue Nos.1 to 3, I proceed to pass the following Order:-
ORDER Suit filed by the plaintiff against the defendants is hereby dismissed.
Parties are directed to bear their own costs. Draw decree accordingly. (Dictated to the Judgment Writer, typed by her, corrected, signed and then pronounced by me in the open court on this the 10th day of April 2019) (DEVANAND PUTTAPPA NAYAK) XXXVIII Addl. City Civil & Sessions Judge,Bangalore City.35 O.S.No.4437/2012
ANNEXURE List of witnesses examined on behalf of the Plaintiff P.W.1 C.R.Venkatesh List of documents marked on behalf of the Plaintiff:
Ex.P.1 Cheque Ex.P2 Endorsement given by bank Ex.P3 Office copy of notice Ex.P4 Notice Ex.P5 Postal cover Ex.P6 Office copy of notice Ex.P7 Four postal acknowledgment and to postal receipts Ex.P14 Ex.P15 Order sheet in C.C.No.4732/2010 Ex.P16 Summons Ex.P17 Complaint
List of witnesses examined on behalf of the Defendants :
DW1 Smt.Sunitha List of documents marked on behalf of the Defendants :
Ex.D1 Certified copy of plaint in
O.S.No.40/93(marked in the
cross-examination of PW1)
36 O.S.No.4437/2012
Ex.D2 True copy of vakalath filed by
grand mother and mother of
PW1 in O.S.No.40/93 in the
year 1995(marked in the cross-
examination of PW1)
Ex.D3 Certified copy of vakalath filed
by grand mother and mother of
PW1 in O.S.No.40/93 in the
year 1993(marked in the cross-
examination of PW1)
Ex.D4 Certified copy of vakalath filed
by mother of PW1 in
O.S.No.40/93 (marked in the
cross-examination of PW1)
Ex.D5 Certified copy
R.A.No.6/05(marked in the
cross-examination of PW1)
Ex.D6 Sworn affidavit filed by PW1 in
R.A.No.6/05(marked in the
cross-examination of PW1)
Ex.D7 Vakalat filed by PW1 in R.A.
No.6/5 on behalf of appellant
as General Power of Attorney
holder(marked in the cross-
examination of PW1)
Ex.D8 Vakalat filed by PW1 on behalf
of appellant as General Power
of Attorney holder
dt.10.8.2007(marked in the
cross-examination of PW1)
Ex.D9 L.R.application accompanied
with sworn affidavit of PW1 in
R.A.No.6/05(marked in the
cross-examination of PW1)
Ex.D1 Certified copy of notice
0 dt.18.11.2014(marked in the
cross-examination of PW1)
Ex.D.11 Copy of the letter dated
30.6.2010.
Ex.D12 Reply notice dated 5.7.2010.
37 O.S.No.4437/2012
Ex.D13 Original renewal of society
dated 4.6.2018.
Ex.D14 List of executive committee
member of Kaveri Education
society for the year 2018-19.
Ex.D15 Office copy of the notice dated
3.7.12, 3 sets together with
RPAD covers.
Ex.D16 Notice dated 30.6.12, 3 sets
together with RPAD covers.
Ex.D17 Certified copy of I.A.1
Ex.D18 Certified copy of vakalath filed
in O.S.No.942/07.
Ex.D19 Certified copy of vakalath filed
in O.S.No.5115/12
Ex.D20 Certified copy of vakalath filed
in O.S.No.233/14.
Ex.D.21 Certified copy of the Sale Deed dated 30.6.2004.
Ex.D22 Certified copy of Sale Deed dated 13.4.2005.
Ex.D23 Certified copy of the plaint in O.S.9707/05.
Ex.D24 Certified copy of the Judgment in O.S.9707/05.
Ex.D25 Certified copy of the decree in O.S.9707/05.
XXXVIII Addl. City Civil and Sessions Judge, Bangalore City.